Advertisements

 

There are those of us who are employed in Kenya to work outside Kenya…this article looks at the legal provisions governing such employment arrangements.

Definition of a foreign contract of service

A foreign contract of service is a contract that is made within Kenya and that is to be performed either in all or in part outside Kenya. For a contract to qualify as a foreign contract of service, the employee should be required to spend a substantial part of the contract term outside Kenya.

An employment contract where, for example, an NGO employs people in Kenya to work for projects based in Somalia or South Sudan, is a foreign contract of service.

books

 

Applicable rules

Special rules apply to foreign contracts of service, reason being, the government wants to ensure that a person sent to work outside the country is well taken care of and will be immediately evacuated to Kenya in the case of emergencies; the special legal provisions exist to protect the employee from abuse and exploitation while outside the country.

There is a prescribed form for such contracts and the contracts should be attested/witnessed by a labour officer. The labour officer will only witness the contract if he is satisfied that:-

  1. The terms and conditions of employment contained in the contract comply with the provisions of the Employment Act, 2007 and other labour laws;
  2. The employee understands what they are getting into – meaning the contract must be signed by the employee;
  3. The employee has given consent to work out of the country;
  4. The employee is not bound to serve under another contract during the period provided in the foreign contract; and
  5. The employee did not enter into the contract through fraud, coercion and or undue influence.

The employee is required to produce a medical certificate confirming that they are medically fit to perform their duties under the contract.

The Act also requires the employer to give the Government of Kenya security by way of a bond in the prescribed form, together with one or more sureties located in Kenya. The purpose of the bond and sureties is to ensure that the Government can hold either the employer or the sureties liable in case of breach of the contract.

The attestation process is pretty straight forward (and takes less than 10 minutes) as long as all the required documents are provided.

Criminal-Lawyer-Brownsville-TXPenalties for non-compliance

If a foreign contract of service is not in the prescribed form or does not meet the above criteria or is not attested by the labour officer, it becomes unenforceable and neither the employee nor the employer can claim under it. This simply means that the situation is a good as one where no written contract was signed and neither the employer nor the employee can raise a claim on the basis of any of its provisions.

It is therefore important for a foreign contract to be compliant in order to give it legitimacy.

According to Section 86 of the Employment Act, 2007, it is a criminal offence punishable by a fine not exceeding Kshs. 200,000/= or imprisonment for a term not exceeding six months or both, to send an employee to a foreign country without the employer and employee entering into a foreign contract of service.

***THE END***

Next post on…expatriates and tax…

.

 

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. Advocates. She has practiced employment law for 10 years. She is a repository junkie and a lover of editing.

Advertisements

Disclaimer

The information on this website is for general guidance on your rights and responsibilities and is not legal advice. If you need more details on your rights or legal advice about what action to take, please contact a lawyer.

We try to ensure that the information on this website is accurate. However, we will not accept liability for any loss, damage or inconvenience arising as a consequence of any use of or the inability to use any information on this website.

We assume no responsibility for the contents of linked websites. The inclusion of any link should not be taken as an endorsement of any kind by us of the linked website or any association with its operators. Further, we have no control over the availability of the linked pages.


Leave a Reply

Your email address will not be published. Required fields are marked *


Comments

  1. Florence Aleyo Amisi-Ndirangu says:

    Great Anne! I love reading your articles.. One question running through my mind is ; what is the legal position on secondments by an employer to another country?
    Also, how are the bonds and sureties processed, and is it commonplace to do this?

    1. Anne Babu says:

      A secondment to a foreign country is a foreign contract of service.
      There are prescribed forms for the bond and surety. Once they are duly completed, they should be submitted to the labour officer for attestation.

  2. violet odhiambo says:

    as usual always a pleasure to hear from you Anne, keep up the good work

  3. I find this interesting. In all my interaction with the employment Act, I have not thought of reading on the foreign contract.

    I will even admit albeit ashamedly, I didn’t know what you were talking about. I had to refer to confirm.

    I like it.

  4. Thanks a lot Anne! This is very informative! 🙂